Victorian Civil and Administrative Tribunal|2010-08-05|Before: Ms J

Bekker v Transport Accident Commission (General) [2010] VCAT 1265 (5 August 2010)

General List - Transport Accident Commission - transport accident - preliminary issue to be determined - whether TAC is liable for reasonable costs of a major service of aeroplane engine, new propeller and fuel costs of an aeroplane owned by the applicant,- whether the items can be a disability service - whether the items can be a rehabilitation service - Transport Accident Act 1986 , , and

Bekker v Transport Accident Commission (General) [2010] VCAT 1265

Mr Werner Bekker, the applicant in these proceedings, was injured in a transport accident in 1988. The injuries caused incomplete paraplegia. The Transport Accident Commission (TAC) has provided compensation to him since then.
Before the accident, Mr Becker's career had centred around flying. He had been in the air force and had been very active in the ultra light aeroplane industry. He set a record flying an ultra light from Kalgoorlie to Adelaide. In the 1980s, he moved to a farm (where he still lives), and cleared it creating an airfield. He hoped to create an ultra light centre. He also worked as an aircraft test pilot as well as a racing car driver.
After the accident, Mr Becker continued to fly, and remains licensed to fly to this day. Flying from and returning to his airfield, he has averaged about 50 hours a year flying. There have been significant breaks in his flying as he coped with serious complications flowing from his injuries.
Mr Becker mainly flies to see family members and friends. He is able to, without assistance, leave his house, get to the aircraft, takeoff and on return, land. The flying achieves two things. First, it assists him to visit people who live say eight hours drive away. While Mr Becker drives, it would be very difficult, if not impossible, for him to independently drive those lengths of time. Second, and I understand from Mr Becker's evidence, possibly the more important feature of flying, is that while he is in the air he is in an important sense not disabled. His mobility is the same as that of other pilots. These 50 hours a year motivate him to deal with the disability and medical challenges he faces.
He has owned his aeroplane since before the accident. He financed flying from compensation paid by TAC. However, on turning 65 the income dropped to the pension level. As his aeroplane has aged, it will soon require an engine rebuild (say $28,000) with running costs including aircraft fuel, annual service and maintenance (say $2000) and periodic replacement propeller blades (say $3700 each time).
Without financial assistance from TAC, Mr Becker will be unable to service his aeroplane. In particular, he says he will not to be able to pay for the engine rebuild. Mr Becker says if he is unable to fly, he sees little point in going on.
Mr Becker applied to TAC for payments to allow him to fly his aeroplane up to 50 hours a year, as described above. TAC refused. Mr Becker applied for review of that decision.

The Act establishes a scheme of compensation for those who are injured or die as a result of a transport accident. Division 2 of Part 3 of the Act sets out the provisions concerning entitlement to compensation and Division 3, the benefits available.
Those benefits include for example, payments for loss of earnings, impairment benefits and medical and like benefits.
Section 60 is headed, "Medical and like benefits". It specifies amounts the TAC is liable to pay as compensation in addition to any other compensation paid under the Act (see s 60(1)).
Section s 60(2)(a) says:

(2) The Commission is liable to pay as compensation to a person who is injured or in respect of a person who dies as a result of a transport accident -

(a) the reasonable costs of road accident rescue services, medical services, hospital services, nursing services, disability services, rehabilitation services, transportation costs and ambulance services received in Australia because of the transport accident; and

Mr Werner contends TAC is liable to pay the compensation because he was injured as a result of a transport accident and the amounts sought are the the reasonable costs of "disability services" and/or "rehabilitation services".
The terms disability services and rehabilitation services are defined at section 3 of the Act,

disability service means the provision to or for a person who is disabled as a result of an injury in a transport accident of any service (other than a rehabilitation service or a hospital service) relating to attendant care, assistance, accommodation support, community access, respite care or household help, the provision of which service is an authorised service in accordance with section 23

rehabilitation service means the provision to or for a person for the purpose of rehabilitation of any aid, treatment, counselling, appliance, apparatus or other service (other than a disability service or a hospital service), the provision of which is an authorised service in accordance with section 23

23 Commission may authorise persons or services

(a) services to be disability services or rehabilitation services; or

(aa) services to be approved services for the purposes of individual funding agreements; or

(ab) a person to provide services for the purposes of section 60A; or

(b) persons to provide services for the purposes of section 60(2)(c), 60(2)(ca), 60(2)(d) or 60(2A); or

(3) A person whose interests are affected by a decision of the Commission to refuse to authorise a person or service may apply to the Tribunal for review of the decision.

I heard evidence from Mr Becker. He strikes me as an honest, courageous and admirable man. I also heard evidence from Dr Jarman, Mr Becker's general practitioner. I considered an affidavit from Mr T Eley, Mr Becker's occupational therapist. Workcover did not require his attendance at the hearing for cross examination.
Dr Jarman and Mr Eley have been treating and supporting Mr Becker for many years. In their opinion, Mr Becker will suffer depression if he is unable to fly. His health will deteriorate.
I admitted a variety of documents into evidence, including the Decision Letter, the Review Letter, medical reports and witness statements.
Given my interpretation of the law below, it is not necessary that I consider the medical evidence in any depth.

Counsel for Mr Becker submitted the costs associated with aeroplane maintenance, are the cost of rehabilitation service as defined by section 3 of the act in context of the following authorities.
The starting point is G.C Wood (Aust) Pty Ltd v Cullen [1991] 2VR 214 where O'Brien J said at page 225,

the word rehabilitation comprehends not only restoration to a former health (the narrow meaning) but also to restore partially or completely to a better condition: the Oxford dictionary (1989), vol 13. Rehabilitative medicine in our community is not confined to persons who can or will be restored to former health but is available to assist persons whose health would otherwise deteriorate.

In deciding Keler v TAC [ 2002] VCAT 445, Deputy President Macnamara was said to have followed the interpretation of the meaning of "rehabilitation" as adopted in Cullen.
In deciding McDonald v TAC [ 2006] VCAT 183 similarly adopted a broad meaning of the word "rehabilitation". At paragraph 66, Deputy President Coghlan said the definition of "rehabilitation service" contemplates the provision of any age to the purposes of rehabilitation and that such words should not be read down or confined. At paragraph 67, she considered that the correct approach is to consider if the aid requested, here the upgrade of the parents' driveway and ramps, will assist with Mr McDonald's rehabilitation. At paragraph 69, she considered that the interpretation of,

rehabilitation" should not be confined to restoration to former health, but is wide enough to include partial restoration to a better condition and the provision of something that will assist persons whose health would otherwise deteriorate, where "health" ... is defined in the constitution of the world health organisation and is "a state of complete physical, mental and social well-being not merely the absence of disease or infirmity.

Concerning the view that the services must be the subject of some form of structured programme (see Keler discussed below), there is a structure to what is proposed. That is that Mr Becker be permitted to fly up to 50 hours a year. Also the compensation sought is structured in the sense that it is for defined items. It is not an open ended request.
Counsel for TAC submitted,
1. since the 1988 accident, Mr Becker received loss of earning and loss of earning capacity benefits in accordance with the Act. They ceased in April 2008 when Mr Becker turned 65. In 2004, Mr Becker settled common-law damages proceedings for pain and suffering and loss of enjoyment of life in the sum of $75,000. He received and continues to receive medical and like services under section 60 of the act, including provision of modifications to his home, car and aeroplane as well as home assistance, and medical treatment. He continues to receive amongst other medical services, attendant care and domestic services and has previously received medical services by way of modifications to his aeroplane which have enabled him to continue to continue flying despite his injuries;
2. the meaning of the term "rehabilitation service" has been considered by VCAT in Keler and McDonald, which both followed Wood. In Keler, Deputy President Macnamara considered an application that TAC pay taxi costs for the injured person to visit family and participate in the community. He rejected the application saying in part that quoted disability services, must be the subject of some form of structured programme. He said (paragraph 27);

However I believe that Mr Solomon has hit upon the very significant obstacle to the success of the present application and that is based upon his submission that "disability services" relative for example to "community access" must be the subject of some form of structured program. There is as it seems to me a very significant distinction between the two forms of service which we are dealing with in the present proceeding and others which are to be found elsewhere in Section 60. Section 60 provides amongst other things for the payment of ambulance services. There is a definition of ambulance service in Section 3 to which it is unnecessary to go beyond noting that there is no requirement for some special preliminary approval process. The same might be said for 90 percent of the definition of medical service to be found in Section 3 - though there is a specific provision limiting entitlement to payment for medical reports at the very end of the definition. The requirement with respect to rehabilitation and disability services that there be a preliminary approval process to my mind indicates that they are to be seen in a significantly different light. The structure as I have noted is that preliminary approval is to be given and the persons providing the services must be authorised in advance under sub-section 1(b). Again, to my mind this supports the submission put by Mr Solomon that some sort of structured program delivered by a particular provider of these services is what is called for, not the ad hoc provision of transport services which is sought here.

The point is also underlined by sub-section (3) of Section 23. A person whose interests are affected by a decision of the Commission to refuse to authorise a personal service may apply to the Tribunal for a review of the decision. I think the reason for this to be a separate review entitlement beyond the one bestowed by Section 77 of the Act is to enable a group of providers whose service has not been approved by the Commission to come along here to the Tribunal and seek to have the Commission's ruling reversed. That being the case, in my opinion, though persuaded at every point of the definitions that what is being sought here is within what is provided for by the Act, the final reference to the Section 23 approval procedure indicates that structured program provided by some persons as a group of providers is what is intended not an ad hoc personal provision of services, for instance by hiring taxis.

the cost to Mr Becker seeks cannot be characterised as "disability services". They are more akin to compensation for loss of enjoyment of life, for which Mr Becker has already been compensated.

I decided to affirm TAC's decision, that it is not liable to pay the compensation Mr Becker seeks. For the purposes of my decision I assume (but do not make findings on the issue) that not being able to fly will cause Mr Becker to suffer depression. My decision flows from interpreting the Act, in the context of the compensation sought, rather than from my view of implications for Mr Becker's health.

In my view, paying the costs of an engine rebuild, annual servicing costs and propeller replacement of Mr Becker's aeroplane cannot be described as a "disability service".
I agree with Deputy President Macnamara's analysis in Keler, that the services must be the subject of some form of structured programme. I note Deputy President Coghlan in McDonald accepted Deputy President Macnamara's analysis.
In my view, Mr Becker's flying is not part of a structured programme. He owns his aeroplane and decides when he will fly. Like others in the community, he is deciding when he will visit family and friends. I do not accept the elements of structure as submitted by Mr Becker's counsel are sufficient to create a structured programme.

Neither in my view, can the compensation sought be described to be for "rehabilitation services".
Again, Mr Becker's flying is not part of a structured programme.
I also considered whether the compensation sought could fall within the definition of "rehabilitation service" being the provision of the purpose of rehabilitation of an aid, appliance or apparatus.
The aeroplane is not an appliance. I note O'Bryan J's view in Wood, the dictionary meaning of appliance is an instrument, apparatus or device, especially one operated by electricity and designed for household use. Therefore, neither an aeroplane nor the servicing of it is an appliance.
The servicing of the aeroplane is not an aid or apparatus.
In McDonald, Deputy President Coghlan ordered TAC to pay the cost of installing a driveway at the home of the injured person's parents. I quote the relevant passages (from paragraphs 63 to 69),

a plain reading of the definition of "rehabilitation service" indicates that it contemplates the provision for the purpose of rehabilitation of firstly, particular things such as any a need, any particular treatment, appliance etc and secondly, other services for the purposes of rehabilitation but have been authorised in accordance with section 23 of the Act. The driveway modifications being a one off matter, would not come into consideration as "any other service" contemplated by the definition.

The structure of the definition of "rehabilitation service" is different from the structure of the definition of "disability service" in that the latter only contemplates any service the provision of which is authorised under section 23. In contrast "rehabilitation service" contemplates the provision of an individual thing, and perhaps an obvious example would be a walking stick, or a prosthesis ... as well as the provision of counselling, treatment and any other service, the latter which has to be authorised under section 23. Where section 23 contemplates authorising services, and service providers and gives the latter particular rights of review, it is difficult to see that the authorisation of services contemplated by section 23 would apply to the provision of "any aid" in the definition.

The definition of "rehabilitation service" contemplates the provision of any aid from the purpose of rehabilitation. "Any aid" is not defined. Given the list which follows, which includes "appliance" or "apparatus", it seems to me that "any aid" should not be read down and confined ... solely to equipment and the like ruling out the provision of an aid, being a structure for the purpose of which is to rehabilitate a person.

... "Rehabilitation" should be given a wide meaning, such as the meaning given to it by Brian J in Cullen's case. ...

... The interpretation of "rehabilitation" should not be confined to restoration to former health, but is wide enough to include partial restoration to a better condition and the provision of something that will assist persons whose health would otherwise deteriorate ... it seems to me that the provision of the driveway and ramps can be an aid of the purpose of rehabilitation.

However, I see Mr Becker's application as quite different to Mr McDonald's. What Mr Becker seeks will require the provision of a mix of "service" being a mechanic's labour and goods such as engine parts and lubricant. The replacement of the propeller will require the propeller, a good, and labour, a service. The aircraft fuel is a good.
Again, the service component is not part of a structured programme.
To decide that TAC should pay for the provision of the goods sought because they are an aid or apparatus is in my view an unsustainable interpretation of the definition of rehabilitation service. In my view a plain reading of the relevant sections do not show Parliament intended that the engine parts and/or fuel which would be required would fit within the definition as an aid, appliance or apparatus provided for the purpose of rehabilitation.
Such a decision would go well beyond that of Deputy President Coghlan in McDonald. She was dealing with the provision of a one off item, which is not the case here.
In Keler, Deputy President Macnamara, affirmed TAC's decision, "albeit with great regret". I also reach my decision with great regret.

Bekker v Transport Accident Commission

At a glance

Court

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Before

Source

Judgment (36 paragraphs)

Bekker v Transport Accident Commission (General) [2010] VCAT 1265 (5 August 2010)

Bekker v Transport Accident Commission (General) [2010] VCAT 1265 (5 August 2010)

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Legislation Cited (1)